The director of a film critical of the Vancouver Aquarium has been granted the right to appeal an earlier court decision alleging copyright infringement and breach of contract, and that ordered parts of the documentary cut from the finished edit.

Gary Charbonneau's 61-minute film — Vancouver Aquarium Uncovered — was released in January of 2016.

It examined the practice of keeping beluga whales and dolphins in captivity and, in part, used footage he shot as part of a school group in 2015.

At the time he was warned by aquarium staff not to use the video commercially.

Aurora beluga

A Vancouver Aquarium staff member kisses Aurora the beluga in December 2014. (Neil Fisher/Vancouver Aquarium)

In February of 2016, the aquarium filed a lawsuit against Charbonneau, Evotion Films Inc. and two other people claiming the footage was being improperly used. 

In April, a judge agreed, and granted an injunction ordering Charbonneau to remove 15 segments of the film, specifically photos and video clips shot inside the aquarium. 

He appealed, and today that decision was released, with the three-judge panel siding with the filmmaker. 

The court ruled today that the earlier decision erred in allowing the injunction with the judges citing freedom of speech as a key rationale for overturning the initial ruling. 

"The film is part of a public dialogue and debate on the issue of whether cetaceans should be kept in captivity, and thus, the Charter value of freedom of expression must weigh against granting the injunctive relief. In addition, irreparable harm was not shown by the Aquarium," wrote Madam Justice Elizabeth Bennett in her decision.

In a statement sent to CBC, the aquarium expressed frustration, but did not clarify if today's ruling will end the legal fight.

"We are disappointed in the outcome of today's decision regarding the injunction to protect Vancouver Aquarium's copyrighted materials from misuse. As a not-for-profit marine science centre, the 1.2 million students and community members who learn and engage with our conservation stories become stronger advocates for our oceans."

Charbonneau's lawyer, Arden Beddoes, argued that the images of the whales and dolphins were key to the film's message and should be protected on free speech grounds. 

Footage the aquarium wanted removed from the documentary included images of Qila, a captive-born beluga calf who died in November 2016, only nine days before her mother, Aurora, also died.